The Catholic Child Welfare Society and others (Appellants ...

1 Michaelmas Term [2012] UKSC 56 On appeal from: [2010] EWCA Civ 1106 JUDGMENT The Catholic Child Welfare Society and others (Appellants) v various claimants (FC) and The Institute of the Brothers of the Christian Schools and others (Respondents) before Lord Phillips Lady Hale Lord Kerr Lord Wilson Lord Carnwath JUDGMENT GIVEN ON 21 November 2012 Heard on 23 and 24 July 2012 Appellant Respondent George Leggatt QC Patricia Leonard Nicholas Fewtrell (Instructed by Hill Dickinson LLP) (Instructed by Jordans Solicitors) Respondent Lord Faulks QC Alastair Hammerton (Instructed by)

2 Wedlake Bell LLP) LORD PHILLIPS (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Carnwath agree) Introduction 1. In 1680, in the city of Rheims, Jean-Baptiste De La Salle founded an Institute known as the Brothers of the Christian Schools ( the Institute ). The members of the Institute are lay brothers of the Catholic Church. They are now to be found in many countries, including the United Kingdom. Their Rules, approved by Papal Bull in 1724, provided that they should make it their chief care to teach children, especially poor children, those things which pertain to a good and Christian life.

3 That has remained the mission of the Institute and the mission and apostolate of each brother. This appeal is concerned with the legal implications of acts of physical and sexual abuse committed, or alleged to have been committed, by brothers who were, or should have been, pursuing that mission at a residential institution at Market Weighton for boys in need of care called St William s ( the school ) 2. The Institute is, in civil law, an unincorporated association of its members. It has, however, corporate features, including a hierarchy of authority. Steps have been taken on behalf of the Institute to create legal bodies that are capable of owning property and entering into legal relations in pursuance of the Institute s mission.

4 Some of these are reflected in the identity of the individual defendants who have been described collectively as the De La Salle Defendants . Expert evidence was given as to the nature and status of the Institute as a matter of canon law. These matters have not been explored before this Court. The preliminary issue with which this Court is concerned is whether the Institute is responsible in law for the alleged acts of sexual and physical abuse of children at St William s committed by its members. To a large extent this preliminary issue has been canvassed as if the Institute were a corporate body having separate legal identity.

5 I shall refer to the Institute as if Page 2 this were the case, although it will be necessary in due course to grapple with the nature of the Institute. 3. This appeal requires this Court to review the application of the principles of vicarious liability in the context of sexual abuse of children. Unhappily this is today not an unusual context and it is one in which vicarious liability has received recent consideration not merely by other courts in the United Kingdom, but at the highest level in Canada and Australia.

6 4. The claims in this group action are brought by 170 men in respect of abuse to which they allege that they were subjected at St William s between 1958 and 1992. The claims are brought against two groups of defendants. The first group consists of the Middlesbrough Defendants . They took over the management of the school in 1973 and inherited, under statute, the liabilities of the managers of the school before that date. They, or those they represent, concluded contracts of employment with the brother teachers. They were held at first instance to be vicariously liable for acts of abuse by those teachers and no longer challenge that liability.

7 By this appeal they seek, however, to challenge the judge s finding, confirmed by the Court of Appeal, that the second group of defendants, the De La Salle Defendants, were not also vicariously liable for the acts of abuse committed by members of the Institute. The claimants are content to look to the Middlesbrough Defendants for their relief and anxious not to risk liability in respect of the costs of the appeal to this Court. Accordingly they have played no part in the appeal. 5. This case is almost a carbon copy of McE v De La Salle Brothers [2007] CSIH 27; 2007 SC 566, in which a similar preliminary issue was tried.

8 In that case a single pursuer claimed damages in respect of physical abuse to which he had been subjected by Brother Benedict, a De La Salle brother, while at a school in Scotland. The claim was however a test case as there were pending some 150 additional cases where abuse was alleged at the hands of brothers at that school. The Court of Session held that there was no basis upon which the allegation of vicarious liability on the part of the Institute could succeed and the claim was accordingly dismissed. The facts 6. No significant challenge has been made in respect of the facts found by the judge of first instance, His Honour Judge Hawkesworth QC, sitting as a judge of the High Court and these have formed the basis of the Statement of Agreed Facts and Issues.

9 Page 3 The Institute 7. The head of the Institute is the Superior General in Rome, elected by the General Chapter of the brothers, which is itself made up of elected representatives of all brothers. For the purposes of administration the Institute is divided into districts called Provinces, each headed by a Provincial.

10 At different times there has been a London Province, an English Province and a Great Britain Province. Within a province the brothers live in communities, each headed by a Director. 8. The brothers are bound together by lifelong vows of chastity, poverty and obedience and by detailed and very strict rules of conduct ( the Rule ). The Rule has its origin in the rules approved by the Pope in 1724, but these were amended from time to time. During the period to which this action relates the relevant rules were the Common Rules of 1947. The vow of obedience carries the obligation to obey the superiors of the Institute, including the Provincial and the Director of the community.